Killing Me Softly

The Supreme Court ponders whether to pull the plug on lethal injection.

While there is nothing funny about lethal injection, the dishonesty pervading the debate about it is just this side of hilarious. Both sides engage in the kind of deception usually reserved for conversations with future in-laws, or the sale of used car parts. On one side, you have death-penalty opponents earnestly insisting they aren't against capital punishment; they just want the procedure to be closer to what you might expect if you went in, say, for a nose job. On the other side, you have states like Kentucky solemnly intoning that their lethal injection procedure is a model of up-to-the-moment medical technology, rather than a bad system conjured up on the fly by Oklahoma's medical examiner in 1977, then copied by the various states in a nationwide cut-and-paste extravaganza.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Were we honest about it, we'd all agree that no one really wants more-tender executions. Death-penalty opponents see this as a step toward a permanent ban on capital punishment. And the 38 states that allow capital punishment have largely sloughed off the unseemly administration of executions to prison staff, who have been bungling and hiding it for decades. That's why using the fight over lethal injection as a proxy for the real fight over the death penalty is doomed from the start. No healthy relationship can be based on such ridiculous fibs.

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Representing two Kentucky inmates who are challenging the state's lethal injection protocol is Donald B. Verrilli Jr. of Washington, D.C.'s Jenner & Block.Verrilli goes in knowing that at least four justices voted to hear this case after the Kentucky Supreme Court found in 2006 that the state's lethal injection protocol did not violate the Eighth Amendment. Four members of the court may have thought at the time that this was the case that would trigger the big national moment of reckoning about capital punishment. By midmorning, it's evident somebody miscalculated.

The lethal injection protocol in Kentucky, says Verrilli, creates a serious danger of cruel and inhumane pain. (Listen here.) That's because the first drug in the three-drug cocktail (the barbiturate sodium thiopental), if administered incorrectly, can cause the second drug (the paralytic pancuronium bromide) to mask the effect of the third drug (potassium chloride, which stops the heart), thus causing "excruciating pain as it burns through the veins." Chief Justice John Roberts stops Verrilli to ask whether that problem is solved if the first drug is administered properly. Justice Anthony Kennedy, subdued this morning, adds: "If it's properly administered, would you even have a case?"

Verrilli concedes that if the first drug always worked, there would be no significant risk of a painful death, but he contends there's no way to guarantee that without better monitoring. He starts to detail the need for medical personnel at executions, but Justice Antonin Scalia points out that the American Medical Association has ethical rules barring doctors and nurses from participating in them. When Verrilli goes on to suggest that in light of this, a single massive dose of barbiturates would be preferable to the three-drug cocktail, Justice Samuel Alito points out that this fix was never raised in the Kentucky courts and shouldn't be litigated now on appeal. Surprisingly, Justice Stephen Breyer joins this pile-up. "You say this is less painful than some other method, but which method?" he asks. "What else should I read?" He cites a study from the Netherlands questioning the efficacy of the single killing dose of a barbiturate.

The chief justice asks whether the single-dose-barbiturate method has even been tried on humans, then goes on to voice the real, underlying complaint of the court's conservatives: "What if you prevail?" he asks. "Will your next challenge be to the single-drug protocol?" With the removal of the paralyzing agent from the protocol, he suggests, petitioners will next complain that their executions are now "undignified and lingering."

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Justice Ruth Bader Ginsburg, like Breyer a reliably rather liberal member of the court, seems focused on a very narrow aspect of the Kentucky protocol: She goes back to the missing medical personnel, because she doesn't like that these folks insert the IV line, then leave the room so prison staff can administer the drugs. Verrilli tries to tick off other forms of monitoring that might better reveal whether a patient had been properly anesthetized—including EKG and blood pressure cuffs—at which point Justice Antonin Scalia's own blood pressure visibly shoots into the red zone: "This is an execution, not a surgery!" he splutters. "The other side says that to know whether the person is unconscious or not, all it takes is a slap in the face and shaking!" Who needs a blood pressure cuff when the back of the prison staffer's hand can do the trick?

"Where is it written that the state must choose the least painful method?" Scalia mutters. "Is that somewhere in the Constitution?" Scalia, like Roberts, is mad because he sees this case for the Trojan Horse that it is. He's not going to agree to "send this case back to the trial court," he warns, while the country experiences (shudder) "a national cessation of executions." That could go on for years.

There hasn't been an execution in this country since Sept. 25—the day the court agreed to hear this case. Death-penalty opponents have hoped this "de facto moratorium" might stick. But Scalia wants you to know that the machinery of death—to use Justice Harry Blackmun's old phrase—is merely on pause. Scalia and Verrilli conclude by engaging in a very lengthy, very terse colloquy over whether the correct legal test for Eighth Amendment purposes is "unnecessary pain," "unnecessary and wanton pain," "intentional pain," or "unusual pain." Trying to sort out what's law and what is mere dicta quickly becomes, er, unusually painful.

Roy T. Englert Jr., of Washington's Robbins, Russell, Englert, Orseck, Untereiner and Saubert, represents the Kentucky Department of Corrections, and he goes with a just-the-facts-ma'am presentation that abruptly deflates this case to its proper size. Asked by Justice John Paul Stevens whether an incorrect administration of the first drug in the cocktail might lead to excruciating pain, he replies, matter-of-factly, "Yes." Asked whether that would violate the Eighth Amendment if it happened in every case, he repeats, "Yes." But, he contends, Kentucky has excellent safeguards. The IV line is injected by a phlebotomist who "places 30 needles a day in the prison population." When Souter objects that this should be done by a doctor, Englert replies that even in hospitals doctors don't insert IVs. "That's derisively referred to as scut work," he observes. He reminds the court that although the state of Kentucky has performed only one execution by lethal injection, the staff has had "100 practice sessions." Unclear if that includes the optional extra credit courses in slapping and shaking.

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Like Scalia, Englert doesn't mince words. If the executioners screw up, he says, you don't need a doctor on hand to detect it. "The prisoner would be awake and screaming." Even an untrained warden "can tell the difference between someone who's asleep and someone who's awake and screaming."

Stevens reminds Englert that Kentucky law requires a single overdose of barbiturates to euthanize even animals. How can animals be treated more humanely than humans? Englert says that's merely because the veterinarians told the state legislature it was a good idea. He dismisses the catalog of botched executions in the record as rather trivial—the result of technicians taking too long to find a vein, or technicians missing a vein, or inmates "showing muscle movement."

At this point, even Stevens concedes that "the record is very persuasive in your favor." Stevens is, however, still "terribly troubled" by the use of that second drug, which serves no purpose other than to mask what may be excruciating pain. Englert reiterates that the paralytic drug serves to "dignify the process." Presumably by cutting down on unsightly inmate thrashing. And he warns, a la Roberts, that for the court to create a new constitutional rule requiring an overdose of barbiturates is to ensure that "the next advocate will come along and say the protocol is unconstitutional because it fails to protect the dignity" of the prisoner.

Deputy Solicitor General Gregory Garre gets 10 minutes to represent the Bush administration, which sides with Kentucky. He spends most of that time allowing the justices to fight among themselves over how to make this much-anticipated case go away with any finality. Some of the liberals want to remand it to the lower courts for a comparative analysis of whether the three-drug protocol is indeed worse than an overdose of barbiturates. "Should we send it back [to the Kentucky courts] for further hearing?" fusses Breyer.

"If we don't do something like that, another case is going to come along, and we'll be right back here again," Souter says. He's advocating—bizarrely—that the court should more or less forget about the facts before it and just "get this issue decided." Scalia reminds everyone that another path to "get this issue decided" is to simply determine that "if the protocol is properly executed, there's no risk."

So that's the way the so-called moratorium will end. Tethered as it was to the slender reed of the brutality of lethal injections, the death penalty may come roaring back this summer if the court decides this case for Kentucky. There are so many real problems with the death penalty—racial disparities and inadequate trial counsel and sloppy crime labs. Anyone who thought those problems might be solved by inducing a sweeter sleep was probably dreaming anyhow.